The Supreme Court held on Friday (September 6, 2024) that the process of judicial appointments to constitutional courts in the country is not the Chief Justices’ “prerogative” and must be consultative.
The apex court said the Collegium system of judicial appointments, followed since it was brought into effect in 1993 by the Supreme Court itself, was a “collaborative and participatory process” involving all the members of the Collegium, which includes the senior-most judges of the court concerned.
“The process of judicial appointments to a superior court is not the prerogative of a single individual. Instead, it is a collaborative and participatory process involving all Collegium members. The underlying principle is that the process of appointment of judges must reflect the collective wisdom that draws from diverse perspectives. Such a process ensures that principles of transparency and accountability are maintained,” a Bench of Justices Hrishikesh Roy and P.K. Mishra observed in its 22-page judgment.
The judgment is based on a petition filed by the two senior-most judicial officers of Himachal Pradesh on their proposed elevation as judges of the Himachal Pradesh High Court. The case revealed that the Chief Justice of the High Court chose to “individually” address the Supreme Court Collegium on the suitability of the two judicial officers without keeping his High Court Collegium colleagues in the loop.
“There was no collective consultation and deliberations by the members of the High Court Collegium. The decision of the Chief Justice of the High Court on the suitability of the two petitioners appears to be an individual decision. It therefore stands vitiated both procedurally and substantially… The Chief Justice of a High Court cannot individually reconsider a recommendation and it can only be done by the High Court Collegium acting collectively,” the Supreme Court held on Friday.
The judgment said the “High Court Collegium should now reconsider the names of Chirag Bhanu Singh and Arvind Malhotra for elevation as judges of the High Court”.
Justice Roy, who authored the judgment, said the “primacy” and “preponderating voice” of the Chief Justice over his senior colleagues was effectively ended by the Supreme Court in 1993 in its judgment in the Second Judges case.
“The Second Judges case had institutionalised the practice of consulting senior colleagues, making it binding on the Chief Justice,” Justice Roy wrote.
The judgment referred to the wisdom in the Third Judges case judgment, which had observed that the element of plurality in the formation of the opinion of the Chief Justice checked arbitrariness, contributed to public trust in the judiciary and demonstrated that judicial appointments were based on thorough consideration.
The judgment clarified that the Supreme Court Collegium did not sit in appeal over High Court Collegiums. Judicial appointments were a “participatory process where each of the constitutional functionaries have a role to play”.
Justice Roy explained that Chief Justices of High Courts cannot act without the participation of their Collegium members merely because communications from the Supreme Court Collegium were “naturally addressed” to the Chief Justices of the High Courts concerned. Logically, it would not be possible for the Supreme Court Collegium to write separate letters to each member of High Court Collegiums.
The court noted that the scope of judicial review in appointment of judges was limited. It should be invoked only if there was a lack of effective consultation, as in this case, or if there were questions about the eligibility of the names recommended for judgeships in constitutional courts.
The judgment ended on a cautionary note to carefully balance transparency in judicial appointments process with the need to maintain confidentiality as “disclosing sensitive information would compromise not only the privacy of the individual but also the integrity of the process”.
Published - September 06, 2024 11:48 am IST
